Mr Cameron Webb v Aurizon Operations Limited, Aurizon Operations Limited (No. 2) - [2024] FWC 513

[2024] FWC 513 [Note: An appeal pursuant to s.604 (C2024/1482) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Cameron Webb

Aurizon Operations Limited, Aurizon Operations Limited (No. 2)

(C2024/130)

DEPUTY PRESIDENT CROSS

SYDNEY, 5 MARCH 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Notice to Produce

On 9 January 2024, Mr Cameron Webb (the Applicant) applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with an alleged dispute with Aurizon Operations Limited (the Respondent) regarding a provision titled Disciplinary Matters contained in the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). The Applicant was represented by the Australian Rail Tram and Bus Industry Union (the RTBU).
The Respondent objected to the Application on the grounds that the Commission did not have jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clause 54 of the Agreement had not been followed, that there was no utility in the relief sought in the Application as the relevant investigation had been completed, and that the relief sought by the Applicant was inconsistent with the provision of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act.

In a decision published on 5 February 2024[1] (the Decision), I rejected the objections of the Respondent, and found:

(a) The Commission had jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clauses 54.1 and 54.2 of the Agreement had been followed;[2]
(b) The dispute clearly continued to be about matters arising under the Agreement being Clause 12, in particular the term requiring adherence to the principles of natural justice and due process;[3] and
(c) Regarding the Respondent’s jurisdictional objection that the relief sought by the Applicant was inconsistent with Clause 12.2 of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act, that confidentiality could easily be observed and applied by the provision of the investigation report that the Respondent relied upon in the meeting of 23 January 2024, said to substantiate the allegations against the Applicant (the Report), in redacted form. It was noted that the Applicant had proposed provision of a redacted Report, and that the appropriate time to ensure compliance with Clause 12.2, and Clause 12 as a whole, is when production and access issues are being considered.[4]

After receipt of the Decision, the Applicant and the Respondent corresponded. In that correspondence the Respondent resisted production of the Report in any form. On 9 February 2024, the RTBU wrote to my Chambers to advise that they sought to have the matter listed urgently.

On 14 February 2024, the Applicant filed a Form F52 Application for an order for production of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mr Cameron Webb v Aurizon Operations Limited, Aurizon Operations Limited (No. 2) [2024] FWC 513
Case: [2024] FWC 513
Decision Date: 5 MARCH 2024

CaseChat Overview and Summary

Mr Cameron Webb applied to the Fair Work Commission for the Commission to deal with a dispute with Aurizon Operations Limited about a disciplinary matter arising under the Aurizon NSW Coal Operations Enterprise Agreement 2021. The dispute involved the production of an investigation report relating to allegations of misconduct against Mr Webb. The Commission rejected Aurizon's objections to the Application and found that the Commission had jurisdiction to deal with the Application and that the dispute was about matters arising under the Agreement. The Commission also found that confidentiality could be observed by providing the investigation report in redacted form. After the decision, Aurizon resisted production of the Report in any form. Mr Webb then applied for an order for production of the documents. Aurizon argued that disclosure would be inconsistent with the confidentiality provisions of clause 12.2 of the Agreement, and that the disclosure would compromise the integrity of the investigation process and the candid participation of witnesses. Mr Webb submitted that the production of the Report was necessary to test the rationality and logicality of the investigator's and decision-maker's deliberative processes and decisions, and to ensure procedural fairness. The Commission considered the submissions of both parties and found that the Respondent had denied procedural fairness and due process to the Applicant by failing to provide the Report. The Commission ordered that the Report be provided in redacted form to the Applicant's representative, subject to certain conditions.

Orders